Panos Koutrakos

The EU Common Security and Defence Policy

Introduction 1. The Origins and Evolution of CSDP 2. The Common Security and Defence Policy within the Framework of Common Foreign and Security Policy 3. The Substantive and Institutional Framework of Common Security and Defence Policy 4. The Policy Context of CSDP 5. CSDP Military Missions 6. CSDP Civilian Missions 7. International Agreements 8. Interactions Between CSDP and Other Strands of External Action 9. Practical and Economic Underpinnings of CSDP 10. Conclusions

Judicial review in the EU's Common Foreign and Security Policy

The EUs Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EUs and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EUs constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Courts jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

International Agreements in the Area of the EU’s Common Security and Defence Policy

The conclusion of international agreements is a part of a wider framework of interactions between the European Union (EU) and the third countries. The principle of openness which underpins the security and defence role of the EU is tied in with the commitment to effective multilateralism. It is also spelled out in the Lisbon Treaty as one of the objectives of the EUs external action. This chapter provides an overview of the treaty-making activity of the EU in the area of Common Security and Defence Policy (CSDP), and the constitutional, procedural and substantive issues which this raises. It is structured in two main sections. The first discusses the procedure which governs the negotiation and conclusion of international agreements in the area, and the second suggests a typology of the existing agreements and explores some of the substantive issues raised by their drafting and application. Keywords:Common Security andDefence Policy (CSDP); international agreements; Lisbon Treaty

The role of law in Common Security and Defence Policy: functions, limitations and perceptions'

In an essay originally written in the early 1990s, Weiler wrote that, ‘[i]n some ways, Community law and the European Court were everything an international lawyer could dream about: the Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts were central and frequently used, and lawyers were important’. This emphasis on law as a motor for integration has been apparent in the extraordinary process of group therapy which the European Union has undergone in the last nine years: the Laeken Declaration of the European Council in December 2001, the establishment of the European Convention, the process of the drafting of the Treaty Establishing a Constitution for Europe, the fateful story of its ratification, the Intergovernmental Conference which led to the signing of the Lisbon Treaty in December 2007, the tumultuous process of its ratification and its entry into force on 1 December 2009, all brought the law to the very centre of the debate about the Union’s direction. And as the process got longer and the road to the entry into force of the relevant legal arrangements revealed more roadblocks and turns than their drafters had envisaged, the debate became more heated and its subject-matter wider and more profound. The fate of the legal rules agreed upon first in the Constitutional Treaty and then in the Lisbon Treaty was associated with the very identity of the Union: law was seen as guaranteeing the effectiveness of the Union’s stature on the world scene. It is interesting in this context that, during the Russia–Georgia crisis in 2008, President Sarkozy of France, then holder of the rotating EU Presidency, wrote that, had the Lisbon Treaty entered into force,the Union would have had the appropriate institutions to deal with international crises. The Lisbon Treaty introduced a number of institutional innovations which provided a focal point for this debate about the role of legal rules in the EU’s foreign affairs. The appointment of the President of the European Council under Article 15(6) TEU, and the High Representative of the Union for Foreign Affairs and Security Policy under Article 18 TEU had been anticipated eagerly as boosting the ability of the Union to act on the international scene. Similarly, the establishment of the European External Action Service (EEAS) under Article 27(3) TEU had been viewed as enhancing the coherence of the EU’s foreign policies. The appointment of Herman van Rompuy, who had been the Prime Minister of Belgium for nine months, as the first President of the European Council, and Baroness Ashton, the Trade Commissioner for a year and a former head of a regional health authority in the United Kingdom, were subsequently viewed as distinctly underwhelming. As for the inter-institutional squabbles which marred the process of setting up the EEAS, they were not only unhelpful but also entirely typical of the internal conflicts which underpin the shaping of the Union’s external posture. The analysis of the institutional innovations introduced by the Lisbon Treaty is beyond the scope of this chapter. Instead, the aim of this chapter is to focus on legal rules which govern the Common Security and Defence Policy, and examine the different functions which they may assume in areas which are at the core of national sovereignty. Therefore, the point of reference for this analysis is distinct from that of the quote which began this chapter: by focusing on the CSDP, one moves away from the tighter legal system set out in what used to be the Community legal order. However, it will become apparent that, whilst further away, the subject matter of this chapter is not entirely distinct from that legal order. The choice of topics it will discuss is highly selective, the aim being to highlight different functions that legal rules assume in the CSDP context. The analysis is structured as follows. First, the chapter will examine the mutual assistance clause introduced at Lisbon and will assess its limitations in terms of the legal duties it imposes on Member States. Second, it will outline the provisions on permanent structured cooperation and will comment on the issues which its application raises. Third, it will analyse the only provision of primary law on defence products, namely Article 346 of the Treaty on the Functioning of the European Union (TFEU), explain its evolving interpretation and set it out within the broader legal and political CSDP context.

Foreign Policy between opt-outs and closer cooperation

The legal framework which governs the foreign and security policy of the European Union (EU) provides an intriguing case study of flexibility. On the one hand, it has provided fertile ground for an impressive range of structures of flexibility, both formal and informal, which have emerged in different ways and for different reasons over the course of the development of Common Foreign and Security Policy (CFSP) as a distinct strand of the Unions external action. On the other hand, flexibility has been inherent in the conduct of the policy as a matter of practice and quite independently from the legal mechanisms set out in the Union’s primary rules. This chapter will argue that there is a density of rules and procedures goverining flexibility which which has developed independently from the ad hoc arrangements prevailing in the area of secrity and defence as a matter of practice. This phenonemon illustrates a heavily proceduralised emphasis on law which is justified by neither prior experience, nor subsequent practice. The analysis is structured as follows. First, it will examine the typology of flexibility mechanisms set out in the rules which govern the CFSP and the Common Security and Defence Policy (CSDP). Secondly, it will explore the central position of flexibility in the design and application of the CFSP/CSDP system and its impact on the conduct of the Unions security and defence policy. Finally, it will reflect on the qualitative differences which characterize flexibility in this area compared to other strands of EU action.

Internal market: an introduction

The internal market has been at the heart of the European integration project from the very beginning. The Treaty of Rome was built around a common market. The revival of integration in the 1980s focused on creating a single market. Many of the fundamental principles of European law have been based on and shaped by the needs of the internal market. For example, in Van Gend the Court of Justice reasoned that ‘[t]he objective of the EEC Treaty, which is to establish a Common Market, ... implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States’,1 and used this to ground the principle of direct effect. In Costa v ENEL the Court proceeded to hold that the principle of primacy was needed to ensure that the objective of the Treaty, the common market, was not undermined by conflicting national laws.2 The profound legal, political, and policy pressures on the internal market make the focus of this book on the project as a whole timely. First, there is an increasing awareness of the limits of the internal market. The imperative of broadening its scope and deepening its intensity by, for example, establishing a capital markets union in support of EMU, has been examined by policy-makers in Brussels and national capitals. Secondly, the full consequences of the successive EU enlargements for the integration project, including the internal market, are still unfolding. Thirdly, the state of the Eurozone (the duration and implications of the euro-problems have now rendered the term ‘crisis’ inadequate to describe it) and the emerging mistrust of EU decisionmaking by an increasingly vocal public have raised existential questions for the process of EU integration. The pressures have manifested recently for example in the context of a New Settlement for the United Kingdom,3 and the Brexit referendum, while the processes surrounding the adoption of the Services Directive represent an earlier example.4 This is the right juncture to step back and focus on the internal market as a whole. Furthermore, and the undoubted centrality of the internal market to the integration project notwithstanding, there have been a surprisingly small number of books, with some notable exceptions,5 that focus on it as an object of research. Each of the four freedoms has attracted plenty of attention, but the entirety of the internal market has not

The Relevance of EU Law for Arbitral Tribunals: (Not) Managing the Lingering Tension

The tensions between European Union (EU) law and intra-EU bilateral investment treaties (BITs) have become increasingly visible: they involve national and transnational courts, arbitral tribunals and courts in third states, and arise in a variety of procedural settings and with increasing intensity. Written at a time when questions about the very foundations of the interactions between EU and intra-EU BITs have been raised before the Court of Justice of the European Union, this article highlights the legal and policy factors that may explain the intensity of the current dilemmas. It reflects on the maximalist and polemical approach that a number of actors have adopted over the years, and points out the pitfalls of ignoring the usefulness of pragmatism and comity.

The European Union's common foreign and security policy after Lisbon

Introduction. The European Union has been going through a long group therapy process since the end of 2001. This culminated in a treaty which died a long and slow death following two referenda (the Treaty Establishing a Constitution for Europe), another treaty (the Lisbon Treaty), and two further referenda in Ireland before the new constitutional arrangements entered into force in December 2009. Throughout these eight years of self-reflection, the foreign affairs of the Union were at the centre of interest and debates. This was made clear in the Laeken Declaration, which kick-started the process in 2001, and raised this question: ‘Does Europe not, now that it is finally unified, have a leading role to play in a new world order, that of a stabilising role worldwide and to point the way ahead for many countries and peoples? ’ Once the Constitutional Treaty was signed, the then President of the Commission, Romano Prodi, stated that ‘today, Europe is reaffirming the unique nature of its political organization in order to respond to the challenges of globalisation, and to promote its values and play its rightful role on the international scene’.

The Notion of Necessity in the Law of the European Union

This article discusses how the EU legal order deals with cases where Member States deem that the principle of necessity justifies a deviation from EU law. It analyses the various exceptional clauses laid down in primary and secondary EU law, and discusses the tensions which their application may raise in the context of the Union’s idiosyncratic constitutional order. It assesses the broad powers with which national courts are endowed, and highlights the dynamic nature of the Union’s approach to accommodating potential deviations. Finally, it focuses on an area at the core of national sovereignty, namely defence, and outlines the gradually shifting approach to its economic aspects which the Union institutions have developed over the years.